Dr. Kasim S/O Maulana Razzak Saheb ... vs State Of Maharashtra Through ...
2004 Latest Caselaw 300 Bom

JUDGMENT

S.R. Sathe, J.

1. Applicant/accused, against whom crime is registered for the offences punishable under Sections 135 and 138 of The Indian Electricity Act, 2003, has filed this criminal application under Section 482 read with Section 438 of Cr.P.C. as well as under Articles 226 and 227 of Constitution of India.

2 Prosecution case in brief is that on 13.02.2004, flying squad of Maharashtra State Electricity Board visited the hospital premises of the applicant/accused and they checked electric connections as well as electric meter installed at the said hospital premises. At that time, they found that the electric meter was slow or was not responding on B and recording 1/3rd consumption. It was also found tampered. In order to find out the correct position, the concerned official of the M.S.E.B. opened the cover of the meter and it was noticed that B @ was shorted by a ban wire. So the concerned officer of M.S.E.B. was of the view that as a result of the same, the applicant had committed theft of electricity. He, therefore, filed a written complaint about the said theft with the concerned police station and the offence punishable under Section 135 & 138 of the Electricity Act was registered against the applicant.

3. The learned Advocate for the applicant/accused argued before me that in the instant case, the flying squad had not properly followed the procedure required under the provisions of the Electricity Act while carrying out the raid and the said raid has been carried out behind the back of the applicant/accused. Secondly, he canvassed before me that the person, who has filed the complaint, had no authority. He also canvassed before me that the alleged offence is non-cognizable and as such police were in fact not entitled to take cognizance of the said complaint and register the offence and carry out the investigation. According to him, action of the police, registering the crime was illegal. He, therefore, submitted that the F.I.R. in the crime in question be quashed and set aside. As against this, the learned A.P.P. submitted that the offence in question is a cognizable offence. The complaint was filed by a competent person, and as such, there is absolutely no necessity to exercise powers of this Court under Section 482 of Cr.P.C.

4. From the perusal of the copy of F.I.R. it is prima facie evident that, proper procedure was followed by the flying squad and the Deputy Executive Engineer of M.E.B. had authority to file the written complaint, as contemplated under Section 151 of the said Act.

5. The main plank of the argument of the learned Advocate for the applicant/accused was that the offence in question is non-cognizable offence. For that purpose, he has placed reliance on Section 151 of the Electricity Act, 2003. The said Section runs as follows:

"151. Cognizable of offences-

No court shall take cognizance of an offence punishable under this Act except upon a complaint in writing made by Appropriate Government or Appropriate Commission or any of their officer authorised by them or a Chief Electrical Inspector or an Electrical Inspector or licensee or the generating company, as the case may be, for this purpose."

6. The learned Advocate for the applicant/accused also submitted that in the entire Act, there is no other specific provision, wherein it has been stated that the offences under Section 135, 138 are non-cognizable or cognizable. A bare reading of Section 151, mentioned above, shows that it only speaks as to the circumstances under which cognizance of the offence can be taken. It nowhere states that the complaint, in writing, has to be made to the Magistrate or to the Special Court. So, by no stretch of imagination, it can be said that the above mentioned section shows that the offences punishable under Section 135 and 138 are non-cognizable. Naturally, under the circumstances, we have to see the provisions of the Code of Criminal Procedure, 1973 to find out, whether the offences in question are cognizable or non-cognizable. For that purpose, useful reference has to be made to Schedule-I Clause (ii). It runs as follows:

  

II-CLASSIFICATION OF OFFENCES AGAINST - OTHER LAWS
 Offence                                   Cognizable or
                                          non-cognizable
If punishable with death,
imprisonment for life, or
imprisonment for more than 7 years.       Cognizable

If punishable with imprisonment
for 3 years, and upwards but
not more than 7 yeas.                     Cognizable

If punishable with imprisonment
for less than 3 years or with
fine only.                                Non-cognizable

 

7. So naturally we have to see what is the prescribed punishment for the offences punishable under Sections 135 and 138 of the Electricity Act, 2003.
  

135. Theft of electricity, -
  

(1) Whoever, dishonestly :-
  

(a) taps, makes or causes to be made any connection with overhead, underground or underwater lines or cables, or service wires, or service facilities or a licensee; or
 

(b) tampers a meter, installs or uses a tampered meter, current reversing transformer, loop connection or any other device or method which interferes with accurate or proper registration, calibration or metering of electric current or otherwise results in a manner whereby electricity is stolen or wasted; or

(c) damages or destroys an electric meter, apparatus, equipment, or wire or cause or allows any of them to be so damaged or destroyed, as to interfere with the proper or accurate metering of electricity.

so as to abstract or consume or use electricity shall be punishable with imprisonment for a term which may extend to three years or with fine or with both."

"138. Interference with meters or works of licensee, - Whoever -

(a) unauthorisedly connects any meter indicator or apparatus with any electric line to which electricity is supplied by a licensee or disconnects the same from any such electric line; or

(b) unauthorisedly reconnects any meter, indicator or apparatus with any electric line or other works being the property of a licensee when the said electric line or other works has or have been cut or disconnected; or

(c) lays or causes to be laid or connects up any works for the purpose of communicating with any other works belonging to a licensee; or

(d) maliciously injures any meter, indicator, or apparatus belonging to a licensee or wilfully or fraudulently alters the index of any such meter, indicator or apparatus or prevents any such meter, indicator or apparatus from duly registering,

shall be punishable with imprisonment for a term which may extend to three years of with fine which may extend to ten thousands rupees or with both...."

8. The learned Advocate for the applicant/accused strenuously argued before me that for both the offences the punishment is "imprisonment for a term which may extend to three years", which according to him, less than three years, and as such, it would come in the third clause of the above Schedule and thus it would be non-cognizable. In order to substantiate this proposition, he has placed reliance on a case Pralhad Giri v. State of Maharashtra 2002 (4) Mah.L.J. 148, wherein Single Judge of this Court, while considering as to within how many days Chargesheet in respect of offence under Section 306 is required to be filed as per Section 167(2) of Cr.P.C., held that the offence under Section 306 of I.P.C. is not punishable with imprisonment of either description of term which may extend to ten years and, therefore, punishment is provided upto ten years. As the punishment can be less than ten years, Section 167(2)(a)(i) is not attracted. However, at the outset, it must be mentioned that the facts of the said case and the facts of the case in hand are quite different. Here there is no question of any application of Section 306 or Section 167. By no stretch of imagination the above cited ruling is of any use to the applicant.

9. The prescribed punishment for offence under Section 135 is "imprisonment for a term which may extend to three years". It obviously means that even punishment of three years can be given, the naturally it will fall under 2nd part of Schedule-I of Clause 2 viz. If punishment with imprisonment for 3 years, and upwards but not more than 7 years - Cognizable. If it was a case that punishment of 3 years cannot be given in any event for offence under Section 135, then only it could have been said that it falls under the next clause, i.e. If punishment with imprisonment for less 3 years. Same is the case for the offence punishable under Section 138 of the Electricity Act. So, I have absolutely no hesitation to hold that both the above mentioned offences are cognizable offences inasmuch as punishment prescribed for the same is imprisonment for a term which may extend to 3 years and thus, even three years punishment can be granted and as such, cannot be said to be an offence punishable with imprisonment for less than three years. So, in my opinion, there is no substance in the argument advanced by the learned Advocate for the applicant that the case in question is a non-cognizable case.

10. From the perusal of Section 151 of the Electricity Act, 2003, it is very clear that the said section is in fact not meant to decide as to whether the case is cognizable or not. It only says under which circumstances the Court can take cognizance of the offences punishable under the said Act. The words used therein are "except upon a complaint in writing". So, it is necessary that the complaint which is required to be filed by a particular person mentioned in the section must be in writing. The question arises whether such a complaint is to be filed before the police so as to enable them to register crime and investigate the same or whether the complaint contemplated in this Section 151 is a complaint as defined in Section 2(d) of the Criminal Procedure Code. Admittedly, the word "complaint" is not defined in the Electricity Act, 2003 so also the word "Court" is also not defined. Of course, from the perusal of the said Act, it appears that special Courts are to be constituted as per Section 153 of the said Act and they are empowered to try the case under the said Act. From perusal of Section 155, it appears that save as otherwise provided in the said Act provisions of Code of Criminal Procedure, 1973 insofar as they are not inconsistent with the provisions of this Act shall apply to the proceedings before the Special Court and for the purpose of provisions of said enactment, the Special Court shall be deemed to be the Court of Sessions. So, considering this position, one can see that the word "complaint" used in Section 151 is not in a general sense as "grievance". But, it is in fact a complaint as contemplated by Section 2(d) of the Code of Criminal Procedure, 1973. Section 2(d) of the Code of Criminal Procedure, 1973 says that :

"complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.

11. So, even if the complaint is filed before the police for the offence punishable Under Section 135 of the Electricity Act and after the investigation report is submitted by the police to the Court, still then cognizance of the same cannot be taken because the report of the police officer cannot be said to be a complaint as defined in Section 2(d) of the Code of Criminal Procedure and contemplated in Section 151 of the Electricity Act, 2003.

12. The learned Advocate for the applicant has drawn my attention to a case Maroti v. State of Maharashtra reported in 1994 Mh.L.J. 1720. wherein the question has arisen as to whether the report submitted by the police for the offence punishable Under Section 497 of the Indian Penal Code fulfils the requirements of Sections 198(1) proviso (a), 2(d) of the Code of Criminal Procedure, 155(2) and Section 497 of the Indian Penal Code. The learned Single Judge of this Court held that the terms "complaint" and "police report" are mutually exclusive. One cannot be the other and vice versa and so, cognizance of the report submitted by the police cannot be taken. In fact the investigation carried out by the police cannot be said to be legal in view of the provisions of Section 198(1) of the Code of Criminal Procedure. It is pertinent to note that Section 198(1) of the Code of Criminal Procedure says that :

"no court shall take cognizance of the offence punishable under chapter XX of the Indian Penal Code, 1860 (45 of 1860) except upon the complaint made by some person aggrieved by the offence...."

13. So, the language of the above section and that of Section 151 of the Indian Electricity Act, 2003 is the same. In the instant case, it is alleged that the applicant has committed as offence punishable Under Sections 135 and 138 of the Indian Electricity Act, 2003. So, the complaint filed should not have been registered by the police as the report submitted by the police after investigation of the said complaint could not have been taken cognizance of by the Court. It is, therefore, necessary to quash the order of registering the crime in question which hereby is quashed. However, it is made clear that the original complaint-Deputy Executive Engineer, Maharashtra State Electricity Board may file the complaint before proper (SIC) or may pursue such other remedy as is open to him in law. Hence, the application is disposed of accordingly.